His Majesty the King v. S.O. Restriction on Publication: s. 486.4; 486.5 Criminal Code Judge: The Honourable Justice Patrick J. Murray, 2023 NSSC 400

SUPREME COURT OF Nova Scotia Citation: R v. S.O ., 2023 NSSC 400 Date: 20231130 Docket: 515611 Registry: Sydney Between: His Majesty the King v. S.O. Restriction on Publication: s. 486.4; 486.5 Criminal Code Judge: The Honourable Justice Patrick J. Murray Heard: October 17, 2023, in Sydney, Nova Scotia Written Decision: November 30, 2023 Counsel: Bronte Fudge-Lucas for the Crown Tony Mozvik, K.C., for Mr. O

Section 486.4 - Order restricting publication — sexual offences 486.4

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(

i) to (iii). Mandatory order on application

(2) In proceedings in respect of the offences referred to in paragraph (1)(

a) or (b), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order.

Child pornography

(3) In proceedings in respect of an offence under

section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. Limitation

(4) An order made under this

section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community.

Section 486.5 - Order restricting publication — victims and witnesses 486.5

(1) Unless an order is made under

section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice. Justice system participants

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

By the Court: Introduction [ 1 ] The Defendant, S.O., is charged that on between July 1, 2013 and August 31, 2013, he did commit a sexual assault on K.A., contrary to s. 271; and that he did for a sexual purpose touch, K.A., a person under the age of sixteen years, directly with a part of his body, to wit: his penis and mouth, contrary to s. 151 (

a) of the Criminal Code . [ 2 ] The Defendant is known to the Complainant, K.A. He is her […]. K.A. is currently […] years of age and living in […]. These offences are alleged to have occurred the summer K.A. would have been […] years of age. [ 3 ] As testified to by both Mr. O. and the Complainant, they had a close relationship even though he is older than the Complainant by about 15 years. The Defendant and the Complainant would hang out together at family functions. [ 4 ] K.A. had a difficult childhood due to parental problems.

K.A. did not have a close relationship with her own family and was living with her grandparents in […] and her aunt in […]. [ 5 ] K.A. testified that she would have been entering […] in September of 2013. That particular summer her aunt was busier than usual, so she was unable to spend as much time with her. [ 6 ] Mr. O. was separated from his wife, with whom he shares a child. While married, they purchased a house in […] at […].

He stated it was a smaller, story and a half with three (3) bedrooms, a good starter home. [ 7 ] During this time the Accused was going through marital differences and dating his then girlfriend, Ms. […], who had […] children of her own. [ 8 ] During the months of July and August, K.A. was asked by Mr. O. to babysit for him and his girlfriend at […], […]. She accepted his offer to babysit. [ 9 ] Mr. O. testified he felt bad for K.A. He said that asking her to babysit would help her out and put a few dollars in her pocket. He would do anything to help her, his […], he said. [ 10 ] Mr.

O. testified that that summer he was residing between his home at […] and […], […], the home of his girlfriend and a larger home. [ 11 ] The Complainant testified that she would just stay at […] a lot of the time even if she was not babysitting because she did not want to go home. [ 12 ] The Accused testified that the times she slept over were “few and far between”. The Complainant would spend the night as they would not get home until the early morning hours. He said he would drive the Complainant home to either […] or […]. K.A. [ 13 ] The Complainant testified that prior to the alleged incidents, Mr.

O. began to make suggestive comments to her. She described a time when he took her for a ride in downtown Sydney, where he pointed out a “hooker” to her and described to her what a hooker was,

and what they did. K.A. testified she was young and knew nothing about these things, she thought it was a joke. [ 14 ] On another occasion he mentioned her “butt”, she said, and how her going to the gym made that look nice. She said he did touch and grab her butt, but not a whole lot before the sexual contact began. [ 15 ] She testified the sexual contact began within two weeks, no more than a month into their relationship that summer. Looking back, she said he was “testing the waters”, and then it just happened. Allegations [ 16 ] K.A. testified the first incident of sexual assault happened in Mr. O.’s bedroom.

K.A. provided details of the layout of the home and the colour of Mr. O.’s bedroom. [ 17 ] K.A. testified that Mr. O.’s girlfriend was out with her children and no one else was home but her and the Accused. She was uncertain of the reason they were upstairs, but they were in his room, and he began touching her. She was just standing there at first, she was not comfortable. He put her hand on his penis and was suggesting what she should do. He was telling her to relax as he removed her clothes and placed her on the bed. “I said I didn’t want to do anything”, she testified.

He ignored it and suggested, “I take it all off”. [ 18 ] He was touching her breasts and butt and removing her clothes. He “went down on” her she said, saying that is not the proper term. This was happening all at once, she said. [ 19 ] K.A. repeated that he performed oral sex on her. She was saying stop during the incident. She was not comfortable, to which he said, “relax, just relax”. She said it felt like “an out of body experience”, or words to that effect. She was very uncomfortable. [ 20 ] She felt she had no control and estimated this part took about 5 minutes with the whole incident lasting longer.

She testified after oral sex he had vaginal sex with her while she was still lying on the bed. “I kept saying stop”, she testified, but he stood up and inserted his penis in her vagina. Once again, he was saying just relax, she said. [ 21 ] When Mr. O. finished, she testified, he just left her there on the bed. She did not know what to do. She got up and got dressed. [ 22 ] The Crown asked her if he wore a condom and she believed he did not. “I would say no”, she said.

When asked if the Accused ejaculated, she said, “he finished”, but was not sure where. “I guess he ejaculated, he walked away and left me there”, she said. The Complainant stated the whole incident lasted between 10 – 15 minutes. [ 23 ] K.A. testified Mr. O. said to her it would be “their secret”, and that no one would believe her, “it’s our secret to take to the grave, right?”, words to that effect. She testified he said this during and after the incident. [ 24 ] K.A. said this occurred 3 or 4 times in total and the other incidents were very similar.

It was always at his house, it was within the 2-month time span of July and August 2013, it was in his bedroom, it was when they were left alone in the home. The sequence of events was basically the same, the removal of her clothing, the oral sex and then sexual intercourse. [ 25 ] Like the first incident, she did not disclose these subsequent events. She did not think anyone would believe her. [ 26 ] K.A. testified it came to a sudden end after Mr. O.’s girlfriend got pregnant. Once that occurred in August, K.A. could not stay at the home anymore.

The Accused drove her to her grandparent’s house to stay with them. [ 27 ] In cross-examination, the Complainant was challenged on her direct evidence in several respects and in particular, her statement given to police. [ 28 ] The Defence took issue with K.A.’s trial evidence as it related to being in the Accused’s truck and him showing her the hooker. At trial, she said they discussed “blow jobs”, him telling her what that was and that “hookers” do that for a living.

Whereas in the police statement the Defence said she mentioned the hooker incident but nothing about the other in that conversation. [ 29 ] K.A. responded by explaining these were separate conversations and did not happen at the same time. K.A. said that it was possible that she misspoke. She further explained she was responding to a question from Crown Counsel when she was asked generally about what sorts of comments Mr. O. was making.

In giving her answer, she paused and then pointed out the page that she was referring to in the police statement. [ 30 ] She was further questioned about her evidence of the Accused commenting on her butt, and grabbing it, the Defence stating this was not mentioned by her in her statement to police. She agreed it was not mentioned, because she forgot, but added it was a quick statement she gave at the time.

She also added that failure to mention it does not mean it did not happen. [ 31 ] The Defence takes issue with K.A.’s evidence in that it contains no evidence of what took place before and after the alleged assaults. Further, the Defence argues the Crown evidence lacks any detail of the alleged subsequent events challenging the Complainant as being “cavalier” about whether there were three (3) or four (4) incidents. [ 32 ] On cross-examination it was suggested that according to her statement the Complainant did not remember what happened leading up to the first incident, the only one she provided any detail on.

She confirmed that was still her evidence at trial, stating she and Mr. O. were at the house alone, but she did not remember exactly the reason they were upstairs or in his bedroom. [ 33 ] In further questioning, K.A. testified what stands out is what happened during these incidents, stating it is “ingrained” in her brain. Mr. O

[ 34 ] Mr. O. testified on his own behalf. He confirmed that he and the Complainant had a very close relationship. [ 35 ] Mr. O. is […] years of age and resides in Sydney, Nova Scotia. He is employed as a […] and now has […] children, […]. Mr. O. is related to the Complainant, stating she is the […], on his […] side. [ 36 ] He described his relationship with K.A. as excellent, stating she was the first young family member, and he could remember playing with her when she was an infant. [ 37 ] Since her birth, they have got along “phenomenally”, he said.

He stated, that prior to the summer of 2013 their relationship was, “absolutely fine”. [ 38 ] A number of times in his testimony he indicated that the Complainant had a difficult upbringing and he felt bad for her. His heart went out to her. [ 39 ] In the summer of 2013, he owned the home in […] and had been working at the […], in Sydney, where he was employed both as a […] and as a […], doing shift work. [ 40 ] His girlfriend, Ms. […], had a […] business at the time, “on paper”, he said, and any meetings she had were few and far between. [ 41 ] Mr.

O. testified that when he, […] and her three children were not staying at […] they were staying at […]’s home located in […]. They rarely stayed at the home in […] as it was small. [ 42 ] Mr. O. testified that he and […] did ask K.A. to babysit as a favour to her, to give her some money, and said he felt bad for her. [ 43 ] He was asked how many times the Complainant would have stayed the night at […], and he testified that it was only when she was asked to babysit for him and his girlfriend. [ 44 ] In terms of the number of times that K.A. babysat in 2013 he testified, “few and far between”.

And if she did stay, he stated, “maybe five times”. [ 45 ] He was further asked if she ever stayed there when she was not babysitting, he replied “a couple of times she did stay overnight”. She would stay in […]’s room, he said. He and […] would stay in the master bedroom and […]’s three children would stay in the other bedroom. [ 46 ] Mr. O. was asked by his counsel about the alleged hooker discussion. He indicated he did recall that.

He was not alone with K.A., he said, […] was with them, and they were driving K.A. to her aunt’s house in […]. [ 47 ] When asked if there was there ever an occasion where he and K.A. were alone driving around Sydney and he had a conversation with her about hookers, “absolutely not”, he replied. [ 48 ] Mr. O. was asked about the allegations and whether on three or four occasions he performed oral sex and vaginal sex on […]. He denied it, “She’s lying”, he said. He testified “it never happened” and added that he respected his […] as a family member. [ 49 ] Once again, Mr.

O. discussed the “rough patch” that K.A. was going through and said he would try to help her out. [ 50 ] Specifically, in direct examination, the Defendant was asked if in 2013 he had ever removed the clothes from and had oral sex or sexual intercourse with the Complainant. “Absolutely not”, he said. [ 51 ] The Accused gave evidence that after 2013 there was one occasion when the Complainant phoned him for help, she was residing at the Travel Lodge and was not supposed to be there. Mr. O. testified that on that occasion he picked K.A. up after dropping her car off at his parents’ house.

He said apparently a chair was thrown and she had to go to the hospital. Mr. O. did confirm the Complainant stayed with him that night. [ 52 ] The Complainant was asked about this in cross-examination, she did remember that occasion, but she did not recall being injured or going to the hospital. [ 53 ] During cross-examination, Mr. O. confirmed he was never alone with K.A. in the home. He would always stand in the driveway or wait in the truck as she gathered her things before she came out of the house. [ 54 ] He stated he would be in a hurry to drive her to […] or […] to her aunts’.

He would then drive to […] to […]’s, and it was a 45-minute drive. [ 55 ] Mr. O. remained adamant the events never happened. He maintained on cross-examination that he and […] rarely stayed at the […] home and spent more time at her home. [ 56 ] Mr. O., when questioned on the number of times K.A. babysat, stated that it was no more than 5 times. When cross-examined, Mr.

O. testified K.A. only stayed the night when she was babysitting because they were out late, and that the only time she stayed over an extra night was on one of those 5 times or nights. [ 57 ] He also stated it was rare that K.A. and he were home alone. The Crown pointed out rare meant that there were times that they were alone. Mr. O. responded stating, if she was there alone, she was “alone, alone”, he said. [ 58 ] It was not long into the Crown’s cross-examination of Mr. O. that aspects of his evidence became confusing.

This was particularly so, as to whether K.A. stayed there, whether it was just to babysit or stayed for a couple of days after babysitting. He had no

specific recollection of a time when his girlfriend was not there. There was probably one time, he said, that he recalled when she stayed a couple of nights, and he remembered speaking to his mother, and she told him to tell her she has to go home. Crown counsel questioned Mr. O. as follows: Correct me if I’m wrong, I had made some notes in your evidence that we just heard, and I don’t want to belabour the point, but I had thought you had said there were times that K.A. stayed overnight when she wasn’t babysitting? A: That would be the time that I just spoke to you about.

Q: But I thought you said she was babysitting that night, and it was late and so when she was… A: She wasn’t babysitting all three or two or three nights that she stayed there, she babysat the first night and then she would have stayed with myself and […], so she would have not been babysitting those extra nights that we were there. Q: Okay and there was, you can say with absolute certainty that at no point […]… yourself and […] were in the home constantly all three of those days. A: If we went anywhere, we probably took K.A. with us. Q: Probably. A: Yeah.

Well, I mean I can’t say for certain, it was 10, 11, 12 years ago, I can’t remember what… Q: Okay and that’s fair but you just said you remember it exactly, so that’s what I’m asking, you say probably you would have taken K.A. with you. A: Well, there’s a good chance, I wouldn’t leave her alone home right, she was 14 years old, I wasn’t going to leave her out in […] with no cell phone or anything like that and… Q: But you would leave her home alone at 14 with no cell phone to babysit your kids while you went out with your wife.

A: No, I had a home landline at that point that she could use for emergencies if she needed to. Q: Okay well so I assume she also had that landline at the home when she was… A: I guess. [ 59 ] Mr. O. could remember certain details specifically, but not others, explaining this was 10-12 years ago. [ 60 ] Mr. O. in both direct and cross examination denied the allegations outright, claiming he only tried to help his “[…]”. He testified he would drive her places and do all he could.

She was stressed and not getting along with her family. [ 61 ] When questioned about whether he told K.A. to keep these events a secret, Mr. O. testified, “never”. Analysis [ 62 ] K.A. was cross-examined by Defence counsel. She was asked a number of questions about her statement to police. At first suggesting she told police about seeing the hooker, but contrary to her direct evidence, she did not tell police about blow jobs, and Mr. O. telling her what they were. [ 63 ] She was also referred to her police statement, which contained nothing about her butt, and comments made by Mr. O. about it, or him grabbing it.

In her answers, K.A. said the conversations were separate, she had been asked by the Crown what conversations she had with the Accused. One was the hooker, the blow job discussion was another. They were separate, she said. [ 64 ] In doing this, she was composed, took her time, and even pointed out the relevant page in her statement (page 280) in response to counsel’s question.

She apologized, in fact, stating she may have misspoken in her direct evidence, but as it turned out, she did not. [ 65 ] Further, she agreed that her evidence about the comments the Defendant made about her butt was not in the police statement. She indicated she must have forgotten, adding that it was a quick statement. [ 66 ] In cross she was asked if she knew the required age to join a gym. She replied she wasn’t sure but thought she was maybe 16 or 17.

She said it would not have been during the time of the incidents, but said she was active and dancing competitively. [ 67 ] The Complainant was also questioned in cross, that according to her police statement she did not remember how she and Mr. O. ended up in the master bedroom. She testified she was unsure of the exact reason why they were upstairs, but they were and they did end up going in the master bedroom. [ 68 ] There were few details that the Complainant may not have remembered exactly as they were 10 years earlier.

It was my impression these were subtle or minor differences. [ 69 ] I shall later refer to the law in respect of assessment, credibility and reliability and the ability to recall peripheral details by a complainant who is testifying as an adult about matters that occurred when they were a child. Decision

[70] Mr. O. presented as a positive person and showed empathy for the Complainant, given what her circumstances were in 2013,when she babysat for him. K.A. had a hard life, he said. [71] He was never alone with her, except to drive her home to where she was staying, which was not with him, his girlfriend andtheir children. [72] He said the times he saw her were few and far between and he stayed mostly in […] because […] was just a small starterhome.

He was busy at the time, dealing with marital issues, and had only time to go out now and then, when he asked his […] to babysit. [73] In cross-examination, I found Mr. O.’s evidence to be contradictory and inconsistent. His answers were vague around the timeswhen K.A. would babysit, when she would sleep over, whether he was ever alone with her, or whether he was simply waiting in the car. [74] At times he remembered certain things specifically and at other times, somewhat evasively stating it occurred decades ago.

Forexample, he remembered clearly that he was not alone with her when his girlfriend was not at home, but when it came to the times shestayed at the residence, that was unclear. [75] The Crown submitted that when the evidence matched up with his version, and it eliminated the time alone, he was clear. When challenged on that, it was not so congruent. [76] I find there is merit in this submission by the Crown. Mr. O. has denied the allegations. I have difficulty accepting Mr. O.’sevidence, as truthful, but he has no burden at all.

He can be shaken on cross, and the Crown may still not have met its burden. [77] As this is a case where Mr. O. testified the case of R v. W.D., (SCC), [1991] 1 S.C.R. 742, applies, and itsgoverning principles on credibility. If I believe his evidence, I must acquit Mr. O. If I do not believe him but his evidence leaves mewith a reasonable doubt, I must acquit Mr. O. [78] In this case, I do not believe Mr. O. nor does his evidence leave me with a reasonable doubt. [79] Having addressed the first two(2) steps in W.D., I may only convict Mr.

O. if the evidence I do accept at this trial, satisfies meof his guilt beyond a reasonable doubt. Has the Crown met its burden in this case? [80] The Crown evidence consists of its sole witness, K.A., the Complainant. In her testimony, K.A. remained consistently solid inher answers. [81] The general principles governing assessment of the evidence of an adult witness testifying about events as a child was recentlyrestated in R v D.D., 2022 ONCA 786, where the court said: 4 In R. v.

W. (R.), (SCC), [1992] 2 S.C.R. 122, it was affirmed that the evidence of children must be approached on acommon sense basis bearing in mind their mental development, understanding and ability to communicate. "Since children mayexperience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missingfrom their recollection": R. v. W. (R)., at para. 25. By way of illustration, the inability of the child complainant in R. v.

W. (R.) toaccurately describe the location of bedrooms in a house, a peripheral matter, was not significant to her credibility or reliability, since achild may not attend to such details: R. v. W. (R.), at para. 30. 5 Even when adults testify about events that allegedly occurred when they were children, such considerations remain relevant. This islogical. If a witness would not likely have noted the thing as a child, their failure to relate that thing years later while testifying as anadult cannot meaningfully unsettle the credibility or reliability of their evidence.

Therefore, "the presence of inconsistencies, particularlyas to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the eventsto which she is testifying" (emphasis added): R. v. W. (R.), at para. 27. 6 However, "[in] general, where an adult is testifying as to events which occurred when she was a child, her credibility should beassessed according to criteria applicable to her as an adult witness": R. v. W. (R.), at para. 27.

The trial judge cited this principle correctlybut misapplied it. [Emphasis in DD] [82] Assessing the Complainant as an adult witness, I found her to be both credible and reliable. She was challenged on numerousoccasions but was unmoved. [83] With respect to the gym evidence and her particular age, she confirmed in cross that it would not have been at the same time asthe allegations. She was candid about the timelines and addressed what appeared to be a contradiction. [84] In R v.

D.F., 2023 NSSC 295, on the subject of assessing a complainant’s testimony, I stated: [49] Further, the Crown asks the Court to consider that the Complainant told his story to the best of his ability and that in recountingsuch events there are bound to be some lapses and aspects that are unclear. In this regard I refer to the case of R v. Figg, 2022, NBCA30, where the court held that a judge should focus on the witnesses “capabilities demonstrated by their ability to perceive, recall andrecount events in the totality of the evidence”. [85] As was discussed in R. v.

W. (R.), (SCC), [1992] 2 S.C.R. 122, the recollection of certain details that areperipheral matters are not necessarily significant to a witness’s credibility or reliability. An example would be a witness not being ableto recall how she/he ended up in a certain room. [86] I reject the Defence suggestion that the Complainant’s memory was “blurry”, and that her ability to recall events was affectedbecause she tried to forget them and “put them in a box”.

[ 87 ] In cases of historic assaults, Courts must not demand too exacting a standard from a complainant witness, while at the same time understanding that the burden of proof beyond a reasonable doubt is a significant burden. [ 88 ] This is not a credibility contest, and the Court must not simply determine which version is more credible. Even if one version is more credible than the other that does not discharge the Crown’s standard of proof.

Although it is not such a contest, credibility is important and a major issue. [ 89 ] The Crown’s burden is to prove the offence beyond a reasonable doubt and the Court must be satisfied of that, based upon all of the evidence, in order to find a person guilty of a criminal offence. [ 90 ] In this case, I am satisfied the Crown has met its burden. For the reasons stated, I find Mr. O. guilty on both counts contained in the indictment. Murray, J.